United States v. Esimai

United States District Court, E.D. New York

November 17, 2017

UNITED STATES OF AMERICA,v.FAITH ESIMAI, Defendant.

MEMORANDUM & ORDER

I. Leo
Glasser Senior United States District Judge.

The
defendant was indicted in the United States District Court
for the Southern District of New York in October 2009 and
pleaded guilty to the violation of 18 U.S.C. § 1349,
conspiracy to commit wire fraud and bank fraud. She was
sentenced on July 26, 2010 to imprisonment for a term of
seventy months to be followed by a term of supervised release
of three years and directed to pay restitution in the sum of
$4, 952, 831.73 and forfeit to the Government criminal
proceeds in the sum of $13, 517, 486.

Having
served her sentence and released from prison, in March 2016
she was again indicted in the Eastern District of New York,
charged with conspiracy to obstruct and obstruction of a
judicial proceeding, namely the Judgement and Forfeiture
Order in the Southern District case. At her arraignment on
April 24, 2016, questions concerning her competency were
raised by her counsel, ECF 19, and on May 4, 2016 her
application for authority to appoint an expert was granted.
ECF 20. A competency hearing was held thereafter on February
8, 2017 and completed that day. The entire record of 120
pages contains the testimony of three witnesses, two of whom
were the experts for the parties and the third was the
defendant.

Crucial
to the ultimate determination of this case are the
transcripts of two meetings on March 7 and March 8, 2016. (G.
Ex. 3, 4). The first was between co-defendant Lydia Hills, an
attorney, who is the defendant Esimai's niece, and the
confidential informant (CI) who was wired to record their in
person conversations, joined by the defendant, who
participated briefly by telephone (G. Ex. 3). The meeting was
held in the office of Ms. Hills. The second meeting, the next
day, March 8th, was also recorded by the CI, the participants
then being Lydia Hills, the CI and the defendant.

A
reading of the transcripts of the conversations between Ms.
Hills and the CI on March 1, 2016, ECF 1 at pp. 7-11, of
which the Court takes judicial notice, Rule 201(c)(d) F. R.
E., and on March 7, 2016, and the interpretation of them by
the Government and its witness, compels the inference that
the subsequent events that spawned this indictment were
foretold.

I am
aware that the issue before me is the competence of Ms.
Esimai to stand trial and the relevance of that inference to
that issue may be questioned. The serious consequence for the
life of this 71-year-old defendant to be made by the
determination of this issue upon a record of 120 pages of
testimony of essentially two disagreeing experts, is
disquieting. Repeated re-readings of the record of the
hearing and the transcripts has ultimately driven me to
conclude that it is that foretelling which casts a shadow
over this sparse record and imperceptibly impacted upon the
conclusions drawn from it.

The
following is a review of that record:

Dr.
Joel Morgan

Joel
Morgan, a clinical neuropsychologist, was the first and only
witness called by the Government. His opinion as to the
defendant's competence to stand trial was based upon his
review of the transcripts of two recorded conversations of
the March 7th and 8th meetings noted
above; reports of examinations by her physician, Dr. Sandra
Robinson, dated October 2, 2015 and April 16, 2016; his
interview of the defendant and neuropsychological tests
performed over a period of six hours.

He
related that he found the defendant to be a friendly,
co-operative and pleasant woman, who repeatedly complained of
memory difficulty throughout the examination. His testimony
consisted almost entirely, on direct examination, of an
explanation of the nature and purpose of the various
neuropsychological tests he performed and the significance of
the score earned by the defendant on each.

He
listed the tests he performed to be:

Government
Exhibit (G. Ex.) 2:

• The Wechsler Abbreviated Scale of Intelligence Scale -
2nd Edition, which is a test of general intellect;

He
explained in broad strokes the methodology of the tests and
how Ms. Esimai performed on each. Tr. at 15-27. Throughout
that recitation, there was no explanation of the relationship
between the test scores and her competence to stand trial,
with one exception. The scores assigned to her memory-tests
were attributed to “inadequate effort, ” a
euphemism for malingering.

Dr.
Morgan was then asked to answer the four questions he was
retained as an expert to answer and which were specifically
addressed to her competence to stand trial. Those questions
were:

1. Does
Ms. Esimai understand the charges against her? His response
was that:

throughout my examination of her, she stated that she did not
understand the charges against her; that she did not know why
she was in trouble. She claimed to have no understanding of
it. However, . . .particularly in the recorded conversations
on March 8th and March 7th with the confidential informant
and Ms. Hills, Ms. Esimai is heard speaking coherently,
clearly without any evidence of confusion. She is with the
conversation, tracking the conversation. She provides input
to the conversation in the discussion of the plan.

She offers advice that is relevant to the conversation. Not
once during either of those conversations does she claim to
have any memory loss or evidence any instance of forgetting
or word finding or anything that would be consistent with
having mental problems such as dementia.

On interview with me, the examinee, Ms. Esimai, repeatedly
claimed to have difficulty remembering basic facts of her
life and claimed not to understand the charges against her.
Tr. at 29.

His
assessment that she showed no evidence of forgetting or
word-finding or anything that would be consistent with having
mental problems, such as Dementia, is at odds with his
Report, Gov. Ex. 2 at p. 2, in which he refers to the April
16, 2016 letter of Dr. Robinson, her primary care physician,
which describes her as being unable to recall objects, dates
or the name of the president. In that Report, he also alludes
to the wiretap recordings as evidencing no cognitive
impairment, G. Ex. 2 at p. 5, which is at odds with Dr.
Robinson's letter which notes that Ms. Esimai's
memory continues to be problematic and her cognitive skills
are not improving. D. Ex. A.

An
objective line by line reading of those recorded
conversations would not support the conclusion that she
understood the charges against her. There is not a line in
the entire transcript of those conversations on which the
charges are mentioned or insinuated, even obliquely, since
she was not indicted until a month later. His assessment of
her participation in them as providing input in the
discussion of the plan and offering advice that is relevant
to the conversation is an exaggeration suggesting a
predisposed interpretation. The most relevant and instructive
transcript is of the conversation Dr. Morgan had with the
defendant at the time he conducted his psychological tests.
The importance of that dialogue for the disposition of this
life-defining issue requires that it be reprinted at length.

Government
Exhibit (G. Ex.) 5:

DR. MORGAN: So let me tell you that um I have been retained
um, by um the ah government to exam you, to examine your
mental abilities today as part of the legal issues um that
you are facing and I will be writing a report ah of my
findings which will go to the attorneys.

FAITH: No problem. What legal issues am I facing?

DR. MORGAN: Tell me, why, what do you know about that?

FAITH: I, ... I'm not too sure all I know is that in my
(UI) broker and ah the bank, I just did what the bank asked
me to do (UI) we needed people with good credit they
don't care about their income once their credit is good
(coughs) and I did what they asked us to do. They're the
people with excellent credit but they're just nature off
so, (UI) what they asked me for, other than that I don't
what (UI) crime committed.

DR. MORGAN: You're not, you're not sure what crime
you're been charged with is that right.

FAITH: That's what I think (UI)

DR. MORGAN: Alright

FAITH: Other than that I don't know.

DR. MORGAN: What, well we'll talk about that a little
later. I just wanna get some basic information

G. Ex. 5 at 1-2:

DR. MORGAN: When, when did you get out of prison?

FAITH: Um, I think late, sometime last year.

G. Ex. 5 at 29:

DR. MORGAN: What was the terms of your release do you know?

FAITH: What do you mean?

DR. MORGAN: Were there, were there any rules when you were
released when you were released, rules that you had to
follow.

FAITH: I can't remember.

DR. MORGAN: Well alright,

FAITH: Tell me what are these rules?

DR. MORGAN: The rules might be that you have, you have to be
ah you can't use drugs, or you have to see a parole
officer or something like that.

FAITH: Yeah, ., I see the parole officer but I never used
drugs and I have never, ..

DR. MORGAN: Okay

FAITH: ...used one of them, I would never.

DR. MORGAN: Alright, before 2009 were you, were you ever sued
by anybody?

FAITH: Not that I know of, for what

DR. MORGAN: For anything

FAITH: I can't remember

DR. MORGAN: Alright, before 2009 were you ever investigated?

FAITH: I don't know.

DR. MORGAN: You're not sure. Were you in any legal
trouble in your home country, Nigeria?

FAITH: No

DR. MORGAN: Are you in any current legal trouble right now?

FAITH: No, just for what they sent me to prison for (UI)
...

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